R v GBG

Case [2020] QCA 112 29 May 2020

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SUPREME COURT OF QUEENSLAND

CITATION:

R v GBG [2020] QCA 112

PARTIES:

R
v
GBG
(appellant/applicant)

FILE NO/S:

CA No 313 of 2018
CA No 11 of 2019
DC No 1724 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 21 November 2018; Date of Sentence: 11 December 2018 (Dick SC DCJ)

DELIVERED ON:

29 May 2020

DELIVERED AT:

Brisbane

HEARING DATE:

15 April 2020

JUDGES:

Morrison JA and Applegarth and Boddice JJ

ORDER:

1. The appeal against conviction is dismissed.

2. The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of one count of rape at trial – where the only issue in dispute at trial was consent – where at trial the complainant denied having sent explicit photographs from her phone – where the complainant delayed reporting the alleged rape for two days despite apparent opportunities to do so – where the complainant was cross-examined about previous complaints she was alleged to have made against the appellant and against others – whether it was open to the jury, in all the circumstances, to be satisfied beyond reasonable doubt that the appellant was guilty of rape

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced after trial to six and a half years’ imprisonment for the offence of rape, with parole eligibility after three years and three months – whether the sentence imposed was manifestly excessive in all of the circumstances

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
R v Black [2019] QCA 114, cited
R v Dalton[2020] QCA 13, cited
R v Flew[2008] QCA 290, cited
R v Oliver[2020] QCA 76, cited

COUNSEL:

The appellant/applicant appeared on his own behalf
N W Needham for the respondent

SOLICITORS:

The appellant/applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA: I have read the reasons of Applegarth J and agree with those reasons and the orders his Honour proposes.
APPLEGARTH J: On 21 November 2018 the appellant was convicted after a three day trial on one count of rape, which was alleged to have occurred on or about 23 January 2017. He appeals against his conviction on the grounds that:
(a)the verdict was unreasonable and cannot be supported having regard to the whole of the evidence; and
(b)in all of the circumstances, the verdict is unsafe and/or unsatisfactory and should be quashed.
The appellant’s sentence was adjourned to 11 December 2018, when he pleaded guilty to two counts of breaching a domestic violence order with a circumstance of aggravation, alleged to have occurred on or about 23 January and on or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v GBG

Details

AGLC: R v GBG [2020] QCA 112
Case: [2020] QCA 112
Decision Date: 29 May 2020

CaseChat Overview and Summary

The appeal, R v GBG, was heard by the Queensland Court of Appeal. The appellant, who was convicted of one count of rape at trial, contested the conviction and the sentence imposed. The primary issue in the appeal was whether the jury was open to being satisfied beyond reasonable doubt that the appellant was guilty of rape, given the evidence presented, especially considering the complainant's credibility and the delay in reporting the alleged incident. Additionally, the appeal addressed whether the sentence of six and a half years’ imprisonment, with parole eligibility after three years and three months, was manifestly excessive.

The Court of Appeal found that the jury's decision to convict was open to them, despite the complainant's inconsistencies and the delay in reporting. The Court emphasised that the jury had the advantage of seeing and hearing the complainant's evidence, which this Court could not fully assess. The Court noted that the complainant's denial of sending explicit photographs and her shifting accounts about her friend's involvement did affect her credibility. However, these inconsistencies did not necessarily undermine her overall testimony that she was raped while asleep and resisted the appellant when she awoke. The Court held that the complainant's prior knowledge of the appellant's intentions did not equate to consent. Moreover, the delay in reporting the alleged rape did not impact the reliability of her account. Regarding the sentence, the Court found that it was not manifestly excessive, taking into account the gravity of the offence.

The Court of Appeal dismissed the appeal against conviction and refused the application for leave to appeal against the sentence. The final orders were that the appeal against conviction be dismissed and that the application for leave to appeal against sentence be refused.

Orders

Orders of the court

1. The appeal against conviction is dismissed.

2. The application for leave to appeal against sentence is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The relevant principles have been stated in a number of recent decisions of this Court, including R v Dalton[6] and R v Oliver.[7] It is unnecessary to re-state them at length. I would, however, adopt the observations of McMurdo JA (with whom Fraser and Gotterson JJA agreed) in R v Black:“… the question is not whether this Court has a doubt about the appellant’s guilt beyond reasonable doubt; it is whether it was open, upon the whole of the evidence, for the jury to be satisfied of the appellant’s guilt, having regard to the advantage enjoyed by the jury over this Court, which has not seen or heard the complainant’s evidence being given. A doubt experienced by this Court, in some cases, may be resolved by recognising that advantage.”[8]Analysis of the sufficiency and quality of the complainant’s evidence[6][2020] QCA 13 at [173]-[181].[7][2020] QCA 76 at [14], [34]-[37] and [98].[8][2019] QCA 114 at [36] (footnotes omitted).Text messages and photographs The complainant’s denial at trial of having sent the photographs from her phone to the appellant on 22 January 2017, along with her sudden recollection in the witness box that her friend S had sent them, diminished her credibility. She had told police that she had sent the photographs to the appellant. The appellant had requested such photographs at 3.45 pm on 22 January 2017. The photographs were sent at 3.56 pm and 4.03 pm. The complainant’s evidence about S sending the photographs was unsatisfactory, with her first telling the trial judge that S was middle aged, before saying that S was younger than she was and had been visiting her in Toowoomba in January 2017 for a sleepover. Evidence from a police officer confirmed that S was a juvenile at the time. The complainant denied having told the investigating officer some time earlier that if she had not sent the photographs the appellant would not have paid for her bus ticket. The appellant’s sexually explicit text messages to the complainant on 22 and 23 January 2017 indicate that he was hoping or expecting to have a sexual encounter with her after she arrived in Brisbane. The complainant must have known this. It was open to the jury to treat the complainant’s denial at trial of having sent the two photographs to the appellant as stemming from embarrassment at having done so in exchange for a bus fare or anxiety on her part that the photographs put her in a bad light on the issue of consent. Upon analysis, the distinct possibility that the complainant was prepared to have a sexual encounter with the appellant during her time in Brisbane did not mean that she consented to sexual intercourse at the time and place she alleged she was raped. Even an expectation by the complainant of a sexual encounter with the appellant during her time in Brisbane did not constitute consent to being penetrated by him when she was asleep or when resisting him after she awoke. Her evidence that she was raped, initially when asleep in the second bedroom, was not rendered incredible or unreliable by the inference that might be drawn from the text messages that she knew that the appellant expected to have sex with her. The text messages do not mean that she consented to having sex when she was asleep or at any other time of the appellant’s choosing.Delay

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v GBG [2020] QCA 112

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Cases cited in this decision · 14 of 14 shown

R v Oliver
[2020] QCA 76 Para 16

…cognising that advantage.”[8] Analysis of the sufficiency and quality of the complainant’s evidence [6][2020] QCA 13 at [173]-[181]. [7][2020] QCA 76 at [14], [34]-[37] and [98]. [8][2019] QCA 114 at [36] (footnotes omitted). Text messages and photographs…
Pell v The Queen
[2020] HCA 12 Para 15

…sfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”[5] [5] Pell v The Queen [2020] HCA 12 at [39].…
R v Dalton
[2020] QCA 13 Para 16

…some cases, may be resolved by recognising that advantage.”[8] Analysis of the sufficiency and quality of the complainant’s evidence [6][2020] QCA 13 at [173]-[181]. [7][2020] QCA 76 at [14], [34]-[37] and [98]. [8][2019] QCA 114 at [36] (footnotes omitted). Text messages and photographs…
R v Black
[2019] QCA 114 Para 16

…sufficiency and quality of the complainant’s evidence [6][2020] QCA 13 at [173]-[181]. [7][2020] QCA 76 at [14], [34]-[37] and [98]. [8][2019] QCA 114 at [36] (footnotes omitted). Text messages and photographs…
R v Baden-Clay
[2016] HCA 35 Para 12

…ses. On the contrary, the court must pay full regard to those considerations”.[2] [1] M v The Queen (1994) 181 CLR 487 at 493; R v Baden-Clay (2016) 258 CLR 308 at 330 [66]. [2] M v The Queen (1994) 181 CLR 487 at 493.…
R v Simmons
[2015] QCA 194 Para 6

…The authorities were R v Hutchinson [2010] QCA 22; R v HAK [2008] QCA 30; R v Basacar [2006] QCA 352; R v Miller [2012] QCA 168 and R v Simmons [2015] QCA 194.…
BCM v The Queen
[2013] HCA 48 Para 14

…ficiency and quality of the evidence, rather than observing that the jury was entitled to accept the complainant’s evidence.[4] [4] BCM v The Queen (2013) 303 ALR 387 at 392 [31] citing SKA v The Queen (2011) 243 CLR 400 at 406 [14].…
R v Miller
[2012] QCA 168 Para 6

…ersonal circumstances.[12] [12]The authorities were R v Hutchinson [2010] QCA 22; R v HAK [2008] QCA 30; R v Basacar [2006] QCA 352; R v Miller [2012] QCA 168 and R v Simmons [2015] QCA 194.…
SKA v The Queen
[2011] HCA 13 Para 14

…rving that the jury was entitled to accept the complainant’s evidence.[4] [4] BCM v The Queen (2013) 303 ALR 387 at 392 [31] citing SKA v The Queen (2011) 243 CLR 400 at 406 [14].…
R v Hutchinson
[2010] QCA 22 Para 6

…ween six and eight years’ imprisonment, taking into account the appellant’s personal circumstances.[12] [12]The authorities were R v Hutchinson [2010] QCA 22; R v HAK [2008] QCA 30; R v Basacar [2006] QCA 352; R v Miller [2012] QCA 168 and R v Simmons [2015] QCA 194.…
R v Flew
[2008] QCA 290 Para 11

…ich are sufficiently exceptional to warrant relieving the applicant from responsibility for the conduct of his case at first instance.”[15] [14][2008] QCA 290. [15]At [28] (emphasis in original).…
R v HAK
[2008] QCA 30 Para 6

…s’ imprisonment, taking into account the appellant’s personal circumstances.[12] [12]The authorities were R v Hutchinson [2010] QCA 22; R v HAK [2008] QCA 30; R v Basacar [2006] QCA 352; R v Miller [2012] QCA 168 and R v Simmons [2015] QCA 194.…
R v Basacar
[2006] QCA 352 Para 6

…o account the appellant’s personal circumstances.[12] [12]The authorities were R v Hutchinson [2010] QCA 22; R v HAK [2008] QCA 30; R v Basacar [2006] QCA 352; R v Miller [2012] QCA 168 and R v Simmons [2015] QCA 194.…
M v the Queen
[1994] HCA 63

…whether the sentence imposed was manifestly excessive in all of the circumstances M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited R v Black [2019] QCA 114, cited R v Dalton [2020] QCA 13, cited R v Flew [2008] QCA 290, cited R v Oliver [2020] QCA 76, cited COUNSEL: The appellant/applicant appeared on his…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	R v GBG [2020] QCA 112
PARTIES:	R v GBG (appellant/applicant)
FILE NO/S:	CA No 313 of 2018 CA No 11 of 2019 DC No 1724 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 21 November 2018; Date of Sentence: 11 December 2018 (Dick SC DCJ)
DELIVERED ON:	29 May 2020
DELIVERED AT:	Brisbane
HEARING DATE:	15 April 2020
JUDGES:	Morrison JA and Applegarth and Boddice JJ
ORDER:	1. The appeal against conviction is dismissed. 2. The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of one count of rape at trial – where the only issue in dispute at trial was consent – where at trial the complainant denied having sent explicit photographs from her phone – where the complainant delayed reporting the alleged rape for two days despite apparent opportunities to do so – where the complainant was cross-examined about previous complaints she was alleged to have made against the appellant and against others – whether it was open to the jury, in all the circumstances, to be satisfied beyond reasonable doubt that the appellant was guilty of rape CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced after trial to six and a half years’ imprisonment for the offence of rape, with parole eligibility after three years and three months – whether the sentence imposed was manifestly excessive in all of the circumstances M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited R v Black [2019] QCA 114, cited R v Dalton[2020] QCA 13, cited R v Flew[2008] QCA 290, cited R v Oliver[2020] QCA 76, cited
COUNSEL:	The appellant/applicant appeared on his own behalf N W Needham for the respondent
SOLICITORS:	The appellant/applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent